An Introduction To Asylum

What is asylum?

Asylum is the process by which a person fleeing persecution in his or her country of origin can seek protection in another country. Every year, thousands of individuals who have suffered violence, injustice, and torture, seek asylum in the United States. When granted, asylum within the US can eventually lead to permanent residency. This legal status also allows an asylee to work legally, to apply to bring family members into the country, and to enter and exit the country freely.

Who can apply for asylum?

Those who flee their country of origin and reach the United States can apply for protection in the form of asylum due to persecution based on race, religion, nationality, political opinion, or membership in a particular social group. The US also recognizes women who have undergone forced abortion, involuntary sterilization, and who have suffered persecution for resistance to a forced birth control program, as eligible for asylum.

For those whose experiences may not fit the stringent requirements for asylum, the following forms of relief from deportation are also available:

The Violence Against Women Act (VAWA): This 1994 US Federal Law can serve as a basis of protection for victims of domestic violence.

Withholding of Removal: Often applied for simultaneously with the asylum application, this process prevents deportation in the case that a person is “more likely than not” to face persecution if forced to return to his or her home country.

Convention Against Torture (CAT): Although more difficult to obtain than asylum, CAT status allows those who fear torture that is not necessarily based on race, religion, nationality, membership in a particular social group, or political opinion, to apply to remain in the US.

U-Visa: A U-Visa gives up to four years of legal status and work eligibility to victims of certain crimes who cooperate with law enforcement.

T-Visa: A T-Visa allows certain human trafficking victims to remain in the US if they agree to testify against perpetrators.

What happens when a person applies for asylum?

The process of seeking asylum is controlled by complex US immigration law. It has become increasingly difficult to gain asylum since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Among other things, this law established requirements for the expedited removal and detention of any asylum seeker who arrives in the US without valid permission to enter the country, and has led to the detention of many asylum seekers who have no criminal record.

The detention system is based on the punitive model of criminal incarceration, and many asylum seekers suffer poor living conditions, high psychological stress, and inadequate access to health services while in detention. The lack of appropriate mental health and other health services has led to an unacceptable number of avoidable deaths within the detention system. Being incarcerated makes it extremely difficult for individuals to seek evidence, correspond with attorneys, and otherwise prepare successful asylum applications. Additional barriers to successful asylum petitions include language differences between asylum seekers and immigration officials, the lack of social and financial resources, and a general lack of understanding of how to seek asylum.

To evaluate an affirmative asylum case, an asylum officer will conduct a detailed interview in which the asylum seeker must demonstrate that he or she cannot return to his or her country of origin due to past persecution or a reasonable fear of future persecution. If an asylum seeker already has an order to appear before an immigration judge, they must prepare a defensive asylum application, which means a judge will hear the case in an adversarial setting. The interview and court proceedings are often extremely difficult and traumatizing for the asylum seeker, as they are forced to recount the details of experiences which may include torture and other severe forms of persecution.

The medical documentation of an asylee’s suffering is hugely influential; in some cases medical professionals who have conducted forensic evaluations may be brought in to testify on the asylum seeker’s behalf so that their findings can have maximum impact on decision-makers. Although 90% of asylum cases with a medical evaluation are approved, the lack of qualified volunteer physicians means that the majority of asylum seekers do not receive this important, potentially life-saving, assistance.

Eventually, the asylum seeker will receive a decision on his or her case, and depending on the circumstances, might have a few legal options left, or may be immediately ordered back to his or her country of origin. Those who receive asylum can immediately begin work and petition to bring their family members into the country.

How long does it take to be granted asylum?

With few exceptions, the 1996 Law requires that applications for asylum be filed within one year of arrival within the United States. However, detained asylum seekers can remain in detention anywhere from months to years while they await decisions on their cases.